In re Halm
128 So. 3d 512
La. Ct. App.2013Background
- Plaintiff Steve A. Halm was treated for a renal cyst at Ochsner Clinic over many years; last treatment by Dr. Figueroa was June 27, 2005, and by Dr. Cohen was April 24, 2007.
- Other Ochsner physicians continued treating Halm for the cyst through July 20, 2011.
- Halm later sought care elsewhere and was found to have a different kidney condition requiring surgery and resulting in loss of one kidney.
- Halm filed a medical-malpractice complaint with the Patients’ Compensation Fund on June 22, 2012, alleging initial misdiagnoses by Figueroa and Cohen caused worsening injury.
- Figueroa and Cohen filed exceptions of prescription/preemption arguing claims were time-barred under La. R.S. 9:5628 (one-year discovery rule, three-year repose); the trial court sustained the exceptions and dismissed the suit as to those doctors.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether claims against Figueroa and Cohen are time-barred under La. R.S. 9:5628 | Prescription was interrupted because other Ochsner doctors continued to treat/misdiagnose Halm through July 20, 2011, so the prescriptive period did not run as to Figueroa and Cohen | Claims prescribed because each doctor’s last treatment occurred more than three years before filing and neither provided continuing treatment within the three-year repose period | Affirmed: claims prescribed; continuing-tort requirement unmet because neither doctor treated Halm within the three-year repose period |
| Whether treatment by other physicians at same facility can be attributed to earlier treating physicians to delay prescription | Treatment at the same hospital by later doctors should be imputed to earlier doctors (or to the hospital and back to the doctors) to invoke continuing tort doctrine | Hospital vicarious liability does not make one doctor liable for another’s acts; treatment by different physicians cannot interrupt prescription as to earlier doctors | Held: treatment by different doctors at same facility does not satisfy continuing-tort element for earlier doctors; prescription not interrupted |
| Whether Moses allows enlarging the three-year repose by invoking continuing tort doctrine | Argued continuing tort can delay repose because misdiagnoses continued via other providers | Moses requires continued tortious treatment or conduct on defendant’s part to possibly invoke continuing-tort doctrine against the three-year repose | Held: Moses controls — continued tortious conduct by the defendant is essential; absent such conduct by these doctors within the repose period, claims prescribed |
| Whether trial judge erred by not permitting Halm to testify at exception hearing | Halm’s testimony was necessary to oppose the exceptions | Judge indicated testimony unnecessary; defense made no contemporaneous objection to exclusion | Held: Issue not preserved for appeal (no contemporaneous objection); court also noted judge did not clearly refuse testimony |
Key Cases Cited
- In re Medical Review Panel for Claim of Moses, 788 So.2d 1173 (La. 2001) (continued tortious treatment by the defendant is an essential element to invoke continuing-tort doctrine against the three-year repose)
- Winder v. Avet, 613 So.2d 199 (La. App. 1st Cir. 1992) (treatments by the same physician over time found to form a continuous tort; does not stand for imputing different physicians’ acts to one another)
- Spradlin v. Acadia-St. Landry Medical Foundation, 758 So.2d 116 (La. 2000) (hospitals are distinct legal entities and do not, in the traditional sense, practice medicine; hospital liability is vicarious or based on negligent hiring/training)
- Matthews v. Breaux, 896 So.2d 1146 (La. App. 5th Cir. 2005) (to preserve evidentiary issues on appeal, a party must make a contemporaneous objection and state reasons why evidence should be admitted)